Rem Assets Ltd v. Mir Investments Ltd and Another

HCA 626/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 626 OF 2008

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BETWEEN

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Before: Hon Yam J in Chambers

Date of Hearing: 23 September 2008

Date of Judgment: 23 September 2008

Date of handing down Reasons for Judgment: 3 December 2008

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REASONS FOR JUDGMENT

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1.On 23 September 2008, I have dismissed both applications of the 2^nd defendant.  The followingS are my reasons therefor. 

2.There are two matters before me, namely :

(i)  the appeal against the decision of Master J. Wong on 21 July 2008 who had dismissed the 2^nd defendant’s application to discharge the Prohibition Order made against him by Master de Souza on 9 July 2008; and

(ii)  an application by summons dated 9 September 2008 for an order that the Prohibition Order made against him by To DJ on 29 August 2008 be discharged. 

3.However in between the aforesaid two matters, an interlocutory judgment had been entered against the 2^nd defendant on 28 August 2008 in default of his Notice of Intention to Defend.  Thus the pre-judgment Prohibition Order was automatically discharged (see Hong Kong Civil Procedure 2008, paragraph 44A/3/9, p. 715).  Accordingly the 2^nd defendant appeal against the order of the decision of Master J. Wong became academic and this appeal is therefore dismissed. 

4.The pre-judgment Prohibition Order was overtaken by the post-judgment Prohibition Order on 29 August 2008.  The 2^nd defendant, in support of his application to discharge this Prohibition Order, originally relied on the following four grounds, namely :

(i)  the court does not have jurisdiction to make a second Prohibition Order once the first order has been extended or renewed for three months;

(ii)  the alleged liability, which was the subject matter of the claim, was not incurred by him in Hong Kong while he was present in Hong Kong;

(iii)  the Prohibition Order made against him is inconsistent with the Hong Kong Bill of Rights Ordinance (“BORO”); and

(iv)  there is no probable cause to believe that he was “about to leave Hong Kong”. 

5.Subsequent to his application, the 2^nd defendant has abandoned the aforesaid 1^st and 2^nd grounds.  These two grounds were not relevant anymore after the Interlocutory Judgment had been entered. 

Bills of Rights Ordinance (“BORO”)

6.It was submitted by Mr Ashley Burns, SC, counsel for the respondent, that BORO does apply in this case.  The right to freedom of movement is engaged either because BORO governs the court’s statutory power to make prohibition orders, or because Article 12(2) of the International Covenant on Civil and Political Rights (“ICCPR”) can be applied in this case. 

7.The freedom to leave Hong Kong is protected by Article 8(2) of the Bill of Rights.  However this right is qualified by Article 8(3), which permits restrictions “provided by law, are necessary to protect … the rights and freedom of others, and are consistent with the other rights recognized in this Bill of Rights”.  The Court of Appeal in Tam Hing Yee v. Wu Kai Wai [1982] 1 HKLR 185 expressly held that a similar section 52E(1)(a) of the District Court Ordinance is consistent with BORO, because it is a restriction necessary for the protection of the rights of others. 

8.Consequently this should also apply in respect of section 21B(1) of the High Court Ordinance, which is therefore also consistent with BORO. 

9.The Prohibition Order is therefore not inconsistent with BORO. 

Is the 2^nd defendant about to leave Hong Kong?

10.The 2^nd defendant contended that there is no probable cause to believe that he is/was “about to leave Hong Kong”. 

11.The plaintiff herein needs only to show by evidence that the defendant’s departure is imminent, although not necessarily permanent (see Hong Kong Civil Procedure 2008, paragraph 44A/2/5, p. 713).  

12.On 16 July 2008, Poon J has already considered this point when he dismissed an earlier application by the 2^nd defendant to discharge the 1^st pre-judgment prohibition order made against them.  Poon J decided that in view of the 2^nd defendant’s lack of connection with Hong Kong, there was probable cause to believe that he would leave Hong Kong if not prohibited from doing so (see paragraph 35 of his judgment, unreported).  There has been no material change in circumstances since that judgment. 

13.I have further accepted the submissions of Mr Burns that there is probable cause to believe that the 2^nd defendant will leave Hong Kong if not prohibited to do so by the following facts, namely :

(i)  the 2^nd defendant is a foreigner who has no family in or social connections with Hong Kong;

(ii)  there is no reason for him to remain in Hong Kong except to comply with the prohibition order;

(iii)  admittedly he has in the past consistently led a “movable” lifestyle in various parts of the world.  He has permanent residences in various cities around the world and he claims to lead a “delocalised life” among five “bases”, namely, Monaco, Singapore, Taipei, Milan and Hong Kong; and

(iv)  interlocutory judgment has been made against him and damages will very likely be assessed at a considerable sum in terms of millions of Euro. 

14.Accordingly, if the 2^nd defendant is allowed to leave Hong Kong there is serious doubt as to whether he will thereafter return to Hong Kong voluntarily and/or timely to face the enforcement proceedings against him.  His absence from this jurisdiction will surely obstruct or delay, if not frustrate, the enforcement of the judgment against him, submitted by counsel for the respondent. 

15.Accordingly, in my view, there are no grounds for discharging the post-judgment Prohibition Order made against him and his application was therefore dismissed on the date of the hearing. 

MrAshley Burns, SC, instructed by Messrs Clyde & Co., for the Plaintiff

2^ndDefendant in person, present